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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Sunday, March 25, 2007 ::
    On Establishment Clause jurisprudence, written in a (Hugo) black humor

    I love teaching the First Amendment, but one of the undeniable downsides of the assignment is having to re-read and teach those pompous and ignorant history lessons that Justice Hugo Black kept on working into his "landmark" opinions on the Establishment Clause.

    For example, one reads in Everson this stock narrative:
    A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.
    Or, from Engel v. Vitale:
    It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.
    Actually, among "our early colonists to leave England" there were basically two groups, the Virginians and the Massachusettsers. The Virginians came here to get rich off tobacco and to boink Native Americans, so let's leave them to one side and talk about the Massachusettsers.

    The Massachusettsers came over, as they themselves said in a document that Mr. Justice Black must at least have heard of, to found a new civil polity "for the glory of God, and advancement of the Christian faith...." They wanted, Justice Black goes on, to be free from "the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England." Yet they considered themselves still part of the Church of England (though a dissenting part), and their leaders attended its services when back in the mother country, much to the distress of ultra-purists like Roger Williams. (Philip Hamburger, Separation of Church and State.)

    The community the Massachusettsers established was not even remotely committed to "religious freedom" in Justice Black's sense, in which religion is something, as he puts it in Engel, "personal." Of course it's personal, but it also has a communitarian dimension. As Justice Scalia put the matter in his Weisman dissent:
    Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the "protection of divine Providence," as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington's first Thanksgiving Proclamation put it, the "Great Lord and Ruler of Nations."
    Since our Massachusettsers (or, more popularly, "the Pilgrims") came over to constitute a religious "people," Justice Black constantly has problems accounting for the absence within the early Plymouth community of "religious freedom" in the modern "personal" or individualistic sense.

    Once one understands what the Pilgrims' ideals and goals were, one sees that it makes no more sense to expect personal religious liberty within the Plymouth community than within a Discalced Carmelite convent. But since this concept is simply not in Justice Black's toolkit, he is forced to opine that something just went wrong. From Engel:
    It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.
    See? An "unfortunate fact." A wrong turn taken. Actually the Plymouth community worked out, for at least two generations, exactly as it had been meant to; but Justice Black can see only a mistake; sort of the way, to someone with no depth perception, a turning disk looks like a circle turning into a line and then into a circle again.

    In Everson he acknowledges that "[t]hese practices of the old world [i.e. religious persecution] were transplanted to and began to thrive in the soil of the new America." But still, it is essential for him that these things be, not merely a regrettable corollary of the Pilgrims' (and others groups') projects, but somehow the very antithesis of them. If the leaders of the Plymouth community and the members of Virginia's House of Burgesses didn't get the memo, then by golly, plain ordinary folk must have:
    These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.
    So now I'm confused: did "our" colonists come over to establish religious freedom, or did they come over the perpetuate European mischief until the Founding generation came along to overturn their wickedness? (Or until Justice Black came along and deployed, for the purpose of overturning state "establishments of religion," a text originally drafted to protect state establishments of religion?)

    Let me not be understood as carrying unlimited water for the Plymouth community. I'm RC myself, and they wouldn't have liked me a'tall. But that doesn't reconcile me to sitting still for bad history lessons from some Masonic textbook or other that wanders into the United States Reports. Early Anglo-Americans should be understood as they understood themselves, not as they've been transformed into stock characters (good or evil) in some Deweyite morality play.

    Furthermore, in Engel, when all the "historical" data on torture and martyrdom has been recited by the Court, we're talking, when all is done, about the dadburn "New York State Regents' Prayer," fer krynout loud. Yes, shocking as it may seem, New York State public school teachers and students were coerced (on what sanction, the record doesn't show: the Court itself only says they were "directed") to say every day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

    My gosh! Did the hills of New Hyde Park run with blood? Did they, Black? Were caravans of anti-Almightarians forming up to seek freedom out west? Were they, Black? Did the New York State Regents' High Court of Inquisition torture and burn those who didn't say this prayer loud enough? Did it, Black? Could one see every night on Cronkite the pitiful sight of atheists dying in the streets of second-class citizenship? Could one, Black?

    Chuck it, Black.

    (With apologies to G.K. Chesterton.)

    EDITED TO ADD: A word about the connection between that Chesterton poem and my post.

    Mr. F.E. Smith, later 1st Earl of Birkenhead, the lawyer and MP whom Chesterton was having a go at, had a cow about a minor (and probably long-overdue) adjustment of the status of an ineffectual religious establishment in Wales. Justice Black, whom I was having a go at, had a cow (several, actually, over time) about some arrangements that he thought were establishments of religion, that were just as ineffectual, religiously, as the Anglican establishment in Wales, and much less harmful (e.g., in contrast to the situation with Anglicanism in Wales, no one in New York was taxed for the support of full-time Regent's Prayer sayers).

    In other words, the common theme is the tendency of otherwise sensible men to have cows over "religious establishment" bagatelles, as if feeling guilty for having missed the truly dangerous church-state action of the 4th or 11th or 16th centuries and needing to cadge themselves a slice of those heroic pies.

    In fairness to "F.E.," he could gently take a judge down a notch when he had to:

    JUDGE: Mr. Smith, I've heard your explanation, but I am no wiser than before.
    SMITH: No, m'lud, but you are better informed.

    JUDGE: Mr. Smith, are you showing contempt for this court?
    SMITH: No, m'lud, I am concealing it.

    :: David M. Wagner 1:04 PM [+] ::

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